Letter: Can RIDE Exempt Teacher Seniority?

I write to express my concerns with the recent directive issued on Jan. 31 by Education Commissioner Deborah Gist to school superintendents throughout the state. Commissioner Gist warned superintendents that she would take “severe action against any district that is using seniority, job fairs or bumping to assign, keep or lay off teachers." 

In a four-page letter, Commissioner Gist further threatened to impose sanctions "up to and including loss of certification," taking districts to court or withholding state education aid unless they comply with her interpretation of a key education regulation called the Basic Education Program.

Taken aback by the substance and tone of her letter, I wrote to Commissioner Gist on Feb. 5 to request clarification on several issues, most pointedly whether or not her directive, if acted upon, would violate RIGL § 16-13-6, which relates to seniority with regard to layoffs [and reinstatement] of teachers due to a decrease in school population. 

For your reference, RIGL § 16-13-6 states that: "a school board may, by reason of a substantial decrease of pupil population within its school system, suspend teachers in numbers necessitated by the decrease in pupil population; provided, however, that suspension of teachers shall be in the inverse order of their employment, unless it is necessary to retain certain teachers of technical subjects whose places cannot be filled by teachers of earlier appointment, and, provided, further, that teachers that are suspended shall be reinstated in the inverse order of their suspension. No new appointments shall be made while there are available teachers suspended." 

Commissioner Gist responded to my request in the affirmative by claiming that it was indeed within her power to direct superintendents to negate seniority in personnel decisions relating to reductions in staff given her "expansive construction" or wide-reaching interpretation of the exceptions clause in RIGL § 16-13-6 (This clause reads: "...when it is necessary to retain certain teachers of technical subjects whose place cannot be filled by teachers of earlier appointment..."). 

In defense of her position, Commissioner Gist asserted that "We must give this clause an expansive construction since all subjects today are taught with professional skills and techniques that teachers possess in different degrees. In order to ensure that students receive the highest level of instruction, schools must retain highly skilled, technically adept teachers over those teachers whose skill set is not at the same high level."

While it is true that this clause does permit exceptions to seniority, RIGL § 16-13-6 clearly calls for a limited interpretation of the exceptions clause as opposed to an "expansive" one. The clause uses restrictive language that sets limiting conditions on the employment of this clause. Such phrases as "certain teachers" and "unless it is necessary" do not lend themselves to "expansive" constructions or far-reaching interpretations. These phrases are clearly intended to narrow the scope of exceptions to the seniority law and to provide exceptions only in rare instances when no other reasonable option exists. More significantly, Commissioner Gist's construing the term "technical subjects" to mean "highly skilled, technically adept" marks a sharp departure with past practice, assigning new meaning to the law, for which I can find no legal foundation.

A subject that is technical refers to areas in which teachers have gained a unique expertise, such as in computer science or statistics. Each, however, would be found in a specific subject field such as business and math, respectively. With regard to technical subjects, the Rhode Island Department of Education has referred to them as "specialized subjects" (Paul A Faella v. West Warwick School Committee, Jan. 3, 1991). As for subjects, RIDE has historically used this term to describe fields of study or knowledge, which it uses to categorize the various areas of teacher certification. For example, a teacher may be certified in English or Foreign Language. 

By contrast, Commissioner Gist has attempted to interpret the term "technical subjects" to mean an adjective (versus a noun) to describe how a teacher instructs as opposed to what a teacher instructs. In other words, she alleges that "professional skills and techniques are based on general teaching abilities, as opposed to specific subject matter, which are routinely observed in many classrooms in different degrees." As such, these skills or abilities would not be exceptional in nature, defeating the whole notion of having an exceptions clause in the first place.

Moreover, if nearly any teacher may be deemed "highly skilled and technically adept" in varying degrees, years of experience would be rendered meaningless. In sum, if one were to accept Commissioner's Gist's "expansive" interpretation of the law as fact, the net effect would be to create a legal loophole so large as to render the seniority rights virtually meaningless.

In light of the aforementioned concerns and argumentation, I respectfully request that the Board of Education provide its legal opinion regarding the meaning of RIGL § 16-13-6, specifically the "exceptions clause" at its next earliest opportunity.

Sen. James C. Sheehan
Chairman
Senate Committee on Government Oversight

What do you think? Should seniority matter when teaching staffs are cut or should the best teachers remain, regardless of tenure?